نوع مقاله : پژوهشی
نویسنده
استادیار، گروه حقوق، دانشکدۀ علوم انسانی و اجتماعی، دانشگاه گلستان، گرگان، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The declaratory oath (yamin al-istiẓhārī) is an oath that a plaintiff must take in a lawsuit filed against a deceased person, despite having proven their right through other evidence, in order to affirm the continued existence of their right and thereby provide the judge with assurance of its persistence. Due to its exceptional nature, the declaratory oath is only applicable in lawsuits against the deceased and is not required to be appended to the plaintiff's evidence in other cases where the defendant is unable to defend themselves, such as lawsuits against minors, the insane, or absent persons. Furthermore, the plaintiff is obligated to take the declaratory oath only if they are the original right-holder (asil), even with the presence of evidence and proof of their right. Consequently, a guardian (walī) , executor (wasī) , custodian (qayyim), or other representatives cannot take the oath, as swearing is personal in nature and cannot be delegated. Therefore, in a lawsuit brought by a representative against a deceased person, according to the general import of narrations, the claim is proven merely by the testimony of witnesses, and the court is obligated to rule in favor of the plaintiff. Furthermore, according to the dominant view, the declaratory oath applies both to debt-related claims against a deceased person and to real (in rem) claims against him.
کلیدواژهها [English]
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